FTAA, EFF, Skylarov, DMCA

dweekly

2001/08/18

_The following letter was sent regarding recent lanugage in the FTAA draft agreement that would require, effectively, all nations in the Americas (South and North) to make it illegal to reverse engineer copyright-protection software. This would permit producers to force restrictions on how their works are not just copied, but used. They can, and will, take your consumer rights away. For more information, see the EFF’s page.

_

August 17, 2001

Gloria Blue Executive Secretary,

Trade Policy Staff Committee Office of the U.S. Trade Representative

1724 F. St., NW, Fifth Floor

Washington, DC 20508

David E. Weekly
950 Pershing Avenue
San Jose, CA 95126

Dear Gloria,

I would like to take a few moments of your day to express to you

some opinions my colleagues and I share regarding the intellectual

property provisions contained within the draft FTAA agreement. I am

writing you today as a concerned citizen of the United States and an

entrepreneur, computer scientist, innovator, and engineer.

I have been working with computers for the last seventeen years of

my life. I have performed for-hire and contract innovation and

consulting for numerous companies, including Casio Research, myplay,

Scout Electromedia, atWeb (now part of AOL), Warner Music,

HearMe/MPlayer, and most recently Legato Systems. I have assisted

research at Harvard’s Physics Labs in antimatter recombination

simulations, MIT’s Lincoln Laboratories in pattern recognition, and

Stanford’s Graphics Labs with optimization of 3D mesh alignment

algorithms. I have been interviewed as a technical expert and quoted

in the New York Times, Fortune, Forbes Digital, Wired, USA Today, the

LA Times, C|Net, and others. I have spoken at and moderated panels at

several technology-oriented conferences. I have written articles for

the international technology press and analyses for paid-for limited

distribution. I have several patents pending.

I mention these things to you so that you can see that the

grounding for my views on intellectual property is as someone who has

made their income for the last decade solely on the production of

intellectual property. I am, in short, a knowledge worker.

The measures in the FTAA agreement restricting the reverse

engineering of software binds the hands of consumers and knowledge

workers in unacceptable ways. We have already seen the United States

ridiculed for its perversely stifling measures in the DMCA,

specifically those dealing with anti-circumvention. As I was a DEFCON

9 attendee, Dmitri Sklyarov’s arrest was all the more immediate and

cutting; it made me embarrassed to be an American among my

international peers. In a land that boasts of its freedoms, the irony

of being unable to speak or publish has not been missed: not on

Skylarov nor Edward Felten nor Eric Corley.

One hearing at Stanford that I attended, held by the US Copyright

Office, left a deep impression upon me. Librarians explained to

Marybeth Peters, the Registrar of Copyrights, that without

circumvention, it was unclear how they would preserve eBooks and other

similar publisher-controlled formats for the reading pleasure of

future generations. After the hearing I was talking to Sony’s

general counsel about the case. “You know what,” he said to me

conspiratorially, “this is all just about people wanting stuff for

free.”

The problem is that this goes much beyond a simple line of

“should intellectual property be free or be paid for?” It’s

clear that intellectual property needs compensation; otherwise I would

not be able to earn a living! What publishers want to do, however, is

not merely charge for the copying of material (for which they have a

copyright and hence a justifiable right), but to control fully the use

of their work. There exists no such thing as a “use-right” that

a company can purchase in the physical world: to demand that only

males can read such and such a book and only on alternate Tuesdays

while drinking Orange Fanta. It would be preposterous and outrageous.

But to use the FTAA agreement to force member nations to ratify a

bill that would prevent circumvention of arbitrary protection schemes

is to hand companies such a right. Because, given the above, it would

be illegal to modify the equivalent digital content to enable it to

play on Wednesdays as well, even if you had fully purchased a

copy. The rights of consumers would rest in the hands of the

publishers, who have very little interest in maintaining consumer

rights.

In my personal opinion, this quandary results because we have made

consumer rights a declarative right and not an assertive right; no

person is allowed to take away your rights directly, but if a piece of

software does it, and a person directs the software, and you are not

permitted to countermand the software, then it is as good as if a

person had directly taken away your rights. Consumers have no direct

legal ground upon which to say “you are not permitted to take away

my right to read books that I’ve bought buy where and when I’d

like, listen to music the same, and watch movies the same!” But

they do have this as an ethical right; for what reason was copyright

assigned but to make sure that works were spread and freely consumed

since a profit could be assured for the publisher from their sale? For

what reason were patents established, but to enable the sharing of

ideas, no longer afraid that others would steal and profit from them?

But these concepts are being infringed upon most directly.

A coworker of mine today spontaneously recounted his frustrations

at traveling to Europe on business with a portable DVD player and

being unable to view any purchased or even rented DVDs there, even

ones unavailable in the US, because of region encoding differences. He

declared his desire to circumvent the region encoding protections, not